Morris v Spink - [2008] QDC 270

DISTRICT COURT OF QUEENSLAND

CITATION:

Morris v Spink [2008] QDC 270

PARTIES:

JOEL ALEXANDER MORRIS

(Appellant)

v

REBEKAH MAREE SPINK

(Respondent)

FILE NO/S:

3041/2008

DIVISION:

Appellate

PROCEEDING:

Appeal against sentence under s 222 of Justices Act 1886

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19, 21 November 2008

JUDGE:

Robin QC DCJ

ORDER:

Extension of time for appealing granted. Appeal allowed. Magistrates’ orders substituting parole eligibility date for fixed parole release date set aside, likewise the original order

CATCHWORDS:

Justices Act 1886 s 142(2) s 222, s 224(1)(a), Penalties and Sentences Act 1992 s 115(b), s 160B, s 188. Corrective Services Act 2006 s 209 - appeal against custodial sentence instituted out of time following Magistrate’s amendment 6 weeks later at the instance of correctional authorities managing the appellant’s imprisonment and without any court hearing to replace a fixed parole date (then 8 days in the future) with a recommendation for parole eligibility as at the same date – appellant still in custody, his parole application apparently undetermined – sentence should not have been made more onerous without appellant being heard – both original and subsequent orders about parole set aside – court inclined to give effect to Magistrate’s expressed intentions as well as could be done by an intensive correction order.

COUNSEL:

Ms Hillard (solicitor) for the appellant

Ms Overell for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions for the respondent

Before the court are an appeal under s 222 of the Justices Act 1886 in respect of sentences imposed at Southport Magistrates Court on 18 August 2008 on the grounds that “the sentence imposed was manifestly excessive” and also an application for extension of time under s 224(1)(a), notices in respect of both being filed on 29 October 2008. The respondent acknowledges that the extension of time ought to be granted.

The circumstances are concerning. On 18 August 2008, Mr Morris, who has a bad criminal history which has seen him actually incarcerated for 497 days (declared as served against a 3-year sentence in Southport District Court on 8 July 2005) and 175 days (declared as time served against a sentence of two years imposed at Southport Magistrates Court on 4 October 2006) pleaded guilty to five offences of receiving, one of possession of tainted property and one of possession of drugs. For the receiving offences he was sentenced to nine months imprisonment, for the others two or three months. The Magistrate said:

“The question really is, how long you should be imprisoned before being released back into the community. Now, when I look at that particular aspect of this sentence, it’s apparent from the pre-sentence custody that when you were taken back to police custody on the 24^th April 2008, after being picked up by the police for these matters, you were returned to prison and required to serve a sentence for another matter and the end date of that sentence is the 8

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morris v Spink

Details

AGLC: Morris v Spink [2008] QDC 270
Case: [2008] QDC 270
Decision Date: 21 November 2008

CaseChat Overview and Summary

The case of Morris v Spink involved an appeal against a custodial sentence that was instituted out of time, following an amendment made by a magistrate six weeks later at the instance of correctional authorities managing the appellant's imprisonment. The appellant's fixed parole date, which was only eight days away, was replaced with a recommendation for parole eligibility at the same date. At the time of the appeal, the appellant remained in custody, and his parole application was apparently undetermined. The central issue for the court was whether the sentence should have been made more onerous without the appellant being heard, and whether the magistrate's subsequent order about parole was lawful.

The court examined the legal framework, including the Justices Act 1886 and the Penalties and Sentences Act 1992, to determine the appropriate course of action. The court found that the appellant should have been given an opportunity to be heard before the sentence was altered to make it more onerous. The court also noted that the subsequent order about parole was made without any court hearing and without the appellant's involvement, which was not in accordance with the law. The court was inclined to give effect to the magistrate's expressed intentions as much as possible by imposing an intensive correction order.

The court granted an extension of time for the appeal and allowed the appeal. The court set aside both the original and subsequent orders about parole, as the appellant had not been heard before the sentence was altered. The court was inclined to impose an intensive correction order to give effect to the magistrate's expressed intentions as much as possible. The orders of the court effectively vacated the original and subsequent parole orders, leaving the appellant to pursue parole under the new order.

Orders

Orders of the court

Extension of time for appealing granted. Appeal allowed. Magistrates’ orders substituting parole eligibility date for fixed parole release date set aside, likewise the original order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Morris v Spink [2008] QDC 270
PARTIES:	JOEL ALEXANDER MORRIS (Appellant) v REBEKAH MAREE SPINK (Respondent)
FILE NO/S:	3041/2008
DIVISION:	Appellate
PROCEEDING:	Appeal against sentence under s 222 of Justices Act 1886
ORIGINATING COURT:	Brisbane
DELIVERED ON:	21 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19, 21 November 2008
JUDGE:	Robin QC DCJ
ORDER:	Extension of time for appealing granted. Appeal allowed. Magistrates’ orders substituting parole eligibility date for fixed parole release date set aside, likewise the original order
CATCHWORDS:	Justices Act 1886 s 142(2) s 222, s 224(1)(a), Penalties and Sentences Act 1992 s 115(b), s 160B, s 188. Corrective Services Act 2006 s 209 - appeal against custodial sentence instituted out of time following Magistrate’s amendment 6 weeks later at the instance of correctional authorities managing the appellant’s imprisonment and without any court hearing to replace a fixed parole date (then 8 days in the future) with a recommendation for parole eligibility as at the same date – appellant still in custody, his parole application apparently undetermined – sentence should not have been made more onerous without appellant being heard – both original and subsequent orders about parole set aside – court inclined to give effect to Magistrate’s expressed intentions as well as could be done by an intensive correction order.
COUNSEL:	Ms Hillard (solicitor) for the appellant Ms Overell for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent